Sumar presented this Tuesday in Barcelona the opinion on a proposed amnesty law for the process, which proposes as the main element to eliminate all criminal repercussions of "actions or omissions" by citizens "whose purpose was to vindicate" the right of self-determination. The event, announced last Friday by the leader of Sumar and second vice president of the acting Government, Yolanda Díaz, was held at the Ateneu Barcelonès, with the attendance of Díaz herself, who did not speak, but left the interventions to the opinion coordinator and other experts in criminal and constitutional law.
The 37-page report, prepared by five university professors who are experts in criminal law, has the ambitious objective of “establishing the bases for the solution of the political conflict between Catalonia and the State.” To do this, it specifies a series of crimes that should be protected by an amnesty law, committed between January 2013 and the constitution of the Cortes Generales on August 17, when, they point out, a second phase “of the decriminalization policy” of the conflict that began with the pardons of the 1-O leaders in June 2021. The amnesty would affect the politicians of the process and also some of the police officers charged by the 1-O, since those who committed crimes of torture and against moral integrity.
This gives greater precision to the scope of the grace measure, referring to the “vindication of self-determination”, a downward correction compared to the draft that was announced last Friday through the media, which covered under the umbrella of the amnesty “all acts of political intention, whatever the result.” In fact, this Monday Sumar already downgraded the ruling to a non-binding "work tool" and "academic reflection."
Throughout the first fifteen pages, the opinion presented by the Professor of Criminal Law Nicolás García Rivas, coordinator of the text, goes into arguing the constitutional fit of the amnesty. The authors point out that despite not being provided for in the text of the Constitution, it offers “ample support” to support it and “there are not a few norms” of the legal system that “expressly” give nature to this measure of funny. They also point out that it is a legal institution “present in the Spanish system since the 19th century”, and in the jurisprudence of the Supreme Court and the Constitutional Court.
In addition to the aforementioned García Rivas, from the University of Castilla-La Mancha, the text is signed by Antoni Llabrés Fuster, from the University of the Balearic Islands; Javier Mira Benavent from the University of Valencia; Guillermo Portilla Contreras, from the University of Jaén: and Rafael Rebollo Vargas, from the Autonomous University of Barcelona.
The document defends leaving behind the "punitive criminal policy" that was exercised in the years of the process and inaugurating a new cycle that is characterized by "distrust towards the exclusive use of criminal law" as an instrument to solve the conflict and "in the that the possible actions harmful to fundamental rights that have taken place in recent years - by all those involved - are framed in a context of distortion of public order." According to the authors, the “political conflict” was aggravated “by forceful criminal repression and by the lack of proportionality with which certain judicial decisions were adopted.”
At this Tuesday's event, Sumar's jurist and chief negotiator with the independentists, Jaume Asens, also took the stand to defend the amnesty; the lawyer Mercè Claramunt, the professor of Constitutional Law Javier Pérez Royo, the professor of Constitutional Law and former lawyer of the Constitutional Court Joaquín Urias, the professor of Medieval History at the University of Barcelona Rosa Lluch and the professor of Criminal Law at the Autonomous University of Barcelona Mercedes García Arán.
In his intervention, Pérez Royo defended that "the amnesty does not raise a single problem" of constitutional fit and falls within the legislative power of the Cortes Generales. Pérez Royo highlighted that the limit to the amnesty is the general limit of the essential content of the fundamental rights, and in this case there is also an added limit which is that there are crimes that are not amnestiable. "There is none of that in the process and there was in the amnesty of '77," he defended.
Mercedes García Arán has pointed out that the important thing is "to advance the coexistence and social peace of Catalans and all Spaniards." "The State has made many mistakes, it has made gestures with the sedition reform, which has already been amnestied. But on the other hand, many Catalans think that prejudices have been generated for Catalonia. It is not about asking for forgiveness, nor the State or those granted amnesty. It's not about that," he added.
Joaquín Urías has agreed that the Constitution does not include a prohibition on amnesty. "It is in the Constitution, it accepts that by law there can be amnesty, there is no problem there," he said. For Urías, the amnesty law has to be compatible with all the articles of the Constitution, like all laws. "The main obstacle is the principle of equality, but in Catalonia after the process the courts have not applied the laws to Catalan independence supporters in the same way as to others," in reference to sedition and embezzlement. "During the process there has been a judicial inequality that must be repaired," he stated. "The amnesty law restores equality, it is not a favor to the independence supporters," he stressed.
The opinion commissioned by Sumar also goes to refute some of the usual arguments against the amnesty, among them that it “attacks the division of powers”, since it prevents judging and enforcing what is judged. According to experts, “those same effects are produced by the pardon, without anyone having thought to consider” that it is unconstitutional. However, they highlight that while the pardon is promoted "for reasons of equity or justice", the amnesty "is articulated around strictly political motivations."
Furthermore, they point out that in constitutional logic an amnesty implies a release from the sentence and therefore implies the application, retroactively, of a more favorable provision, included in article 2.2 of the Penal Code.
Regarding the material limits of an amnesty law, the document indicates that it could not be applied to crimes against humanity or if they are illicit that do not prescribe. And he emphasizes that it must adapt to the principles of proportionality and equality, so "there cannot be differential treatment between those who participated in the events." He thus anticipates possible appeals by defending that the amnesty does not break the principle of equality because all parties to the conflict will have the same treatment.
By type of crime, they propose amnesty actions and omissions demanding self-determination that may be classified as crimes against the Public Administration (title XIX of the Penal Code), against the Administration of Justice (title XX), against the Constitution (XXI) and against public order (XXII). Likewise, the crimes of injuries, threats, coercion, discovery and disclosure of secrets, search of the domicile of legal entities, damages, falsification of documents and usurpation of public functions, and violations of articles 35, 36 and 37 of the Citizen Security Law .
To establish the requirements that an amnesty law should meet, the opinion is inspired by the jurisprudence of the German Federal Constitutional Court to establish four requirements: it must be justified by a legitimate reason, well-founded and that may also have the objective of resolving a “ political conflict”; that it be developed as an organic law of a general nature, not for particular cases; that all parties to the conflict, “friends and enemies”, receive the same treatment and that they comply with respect for International Human Rights Treaties.
The scope of the amnesty law detailed in the opinion would imply amnesty both the crimes of which President Carles Puigdemont is accused and for which part of his Government was convicted (embezzlement and disobedience, once the sedition was repealed), as well as the that could have been committed in the protests against the Supreme Court ruling in October 2019, for which more than 700 people were criminally charged. The measure would also benefit the 50 officials of the Generalitat still subject to criminal proceedings in the Court of Instruction 13 of Barcelona for their involvement in the referendum of October 1, 2017, as well as the more than 700 mayors who were investigated for supporting it. .
Furthermore, the text refers to criminal proceedings for different crimes against public order against the CDR, for financial support to the process (Operation Volhov), the accusation against Tsunami Democràtic for the organization of the street protests that are being investigated in the National Court or the case against 10 political leaders for the foreign action that was carried out during the process, accused of crimes of embezzlement in the 18th Investigative Court of Barcelona.
It would also cover the investigation by the Court of Accounts of 54 people for their participation in the organization of the 1-O consultation and the 600 contentious-administrative procedures against city councils for their links with the Association of Municipalities for Independence (AMI) or for others. facts “of zero relevance”, such as not raising the Spanish flag or preparing motions against the Monarchy. “To all this, we should add more than 850 complaints of administrative violations of the Citizen Security Law,” the text states.
